Lakeside-Scott v. Multnomah ( 2009 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LEA LAKESIDE-SCOTT,                      
    Plaintiff-Appellee,
    No. 05-35896
    v.
    D.C. No.
    MULTNOMAH COUNTY,
    Defendant,              CV-02-01505-
    MWM
    and
    OPINION
    JANN BROWN,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Oregon
    Michael W. Mosman, District Judge, Presiding
    Argued and Submitted
    November 9, 2007—Portland, Oregon
    Filed February 12, 2009
    Before: Raymond C. Fisher and Marsha S. Berzon, Circuit
    Judges and Judith M. Barzilay, Judge.*
    Opinion by Judge Fisher;
    Concurrence by Judge Berzon
    *The Honorable Judith M. Barzilay, United States Court of Interna-
    tional Trade, sitting by designation.
    1721
    1724        LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    COUNSEL
    George P. Fisher, Portland, Oregon, for the plaintiff-appellee.
    Jenny M. Morf (argued), Assistant County Attorney; Katie A.
    Lane, Assistant County Attorney, Portland, Oregon, for the
    defendant-appellant.
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY             1725
    OPINION
    FISHER, Circuit Judge:
    This appeal involves an alleged retaliatory discharge of an
    employee after she complained about co-workers and one of
    her supervisors and presents a question that this circuit has not
    yet answered: Can a final decision maker’s wholly indepen-
    dent, legitimate decision to terminate an employee insulate
    from liability a lower-level supervisor involved in the process
    who had a retaliatory motive to have the employee fired? We
    conclude that, on the record in this case, the answer must be
    yes, because the termination decision was not shown to be
    influenced by the subordinate’s retaliatory motives.
    The plaintiff-appellee, Lea Lakeside-Scott (“Scott”), was
    fired from her position as an information systems specialist at
    Multnomah County’s Department of Community Justice
    (“DCJ”), ostensibly for her improper use of DCJ’s computers
    and email system. Scott then brought this lawsuit alleging that
    her termination was actually in retaliation for her engaging in
    speech protected under the First Amendment and by Oregon’s
    whistleblower protection statute. While she was employed at
    DCJ, Scott had complained about co-workers’ violations of
    County policies, including by one of her supervisors — Jann
    Brown — whom she also accused of favoring gay and lesbian
    employees in hiring and promotion decisions. Brown played
    a role in the process that led to Scott’s termination, although
    the ultimate decision was made independently by Joanne Ful-
    ler, director of DCJ’s information systems department. Scott
    contends that Brown wanted to retaliate against Scott for her
    accusations against Brown, and thus unlawfully influenced
    Fuller’s decision to fire Scott.
    Scott filed her retaliatory discharge claim against the
    County and Brown in federal district court. After a trial, a jury
    found in Scott’s favor, awarding her $650,000 in compensa-
    1726           LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    tory and punitive damages against Brown.1 The district court
    denied Brown’s motion for judgment as a matter of law
    (“JMOL”), and this appeal followed. We conclude there was
    insufficient evidence to support the verdict against Brown,
    given the evidence that it was Fuller’s independent decision
    to terminate Scott. We therefore reverse the district court’s
    denial of Brown’s JMOL and remand for entry of judgment
    in her favor.
    BACKGROUND2
    Scott began her employment in DCJ’s information services
    unit in August 1997. During the relevant time period, her
    direct supervisor was Monna Hogue. Hogue reported to Dan
    Gorton, who reported to Brown, who, in turn, reported to the
    department’s director, Ms. Fuller.
    Scott frequently complained to Gorton and Hogue about
    her perceived problems in the office. Her grievances included
    personality conflicts with other DCJ employees, promotions
    she did not receive and alleged misuse of the County com-
    puter system by co-workers and managers. In October 2001,
    Scott filed a formal complaint with the Oregon Bureau of
    Labor and Industries (“BOLI complaint”) alleging, among
    other things, that Brown gave preferential treatment to gays
    and lesbians in hiring and promotions. Brown learned about
    the BOLI complaint shortly thereafter; she was shocked by its
    allegations of favoritism, which she took personally.
    In November 2001, Fuller ordered Brown to search the
    email of an employee, David Landis, as part of an investiga-
    1
    The district court ultimately dismissed all of the claims against the
    County, which are not at issue in this appeal.
    2
    We view the evidence in the light most favorable to the party in whose
    favor the jury returned a verdict and draw all reasonable inferences in her
    favor. See Settlegoode v. Portland Pub. Sch., 
    371 F.3d 503
    , 507 (9th Cir.
    2004); Ostad v. Or. Health Sci. Univ., 
    327 F.3d 876
    , 881 (9th Cir. 2003).
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                    1727
    tion of another DCJ employee who had allegedly sent racially
    discriminatory emails at work. Lacking the technical ability to
    do the search herself, Brown directed Tami Williams to do it.
    Williams sent the emails and attachments she recovered dur-
    ing her search to the human resources department. Attached
    to one of these emails was a journal, written by Scott and sent
    by her to Landis, that contained discriminatory comments and
    excerpts of other employees’ work documents. It is unclear
    whether Williams knew about the journal when she sent the
    emails to human resources. After human resources personnel
    discovered the journal, either they or Fuller instructed Brown
    to look for additional material from Scott.3
    In the meantime, either someone in human resources or
    perhaps Williams informed Brown about Scott’s journal hav-
    ing been found among Landis’ email documents. When
    Brown read the journal, which included excerpts of personal
    emails and documents from co-workers and supervisors as
    well as several apparently derogatory remarks about homo-
    sexuals, she immediately showed it to Fuller. At an ensuing
    meeting attended by Fuller, Brown and a County counsel,
    Fuller decided to place Scott on administrative leave (standard
    practice during an employee investigation) and directed
    Brown to write a letter to Scott informing her of this decision.
    With the assistance of the human resources department,
    Brown prepared and signed a standardized letter advising
    Scott she was being placed on administrative leave. After con-
    sulting with the human resources department and Fuller about
    how to present the letter to Scott, Brown had Scott come to
    her office the next morning along with two other managers,
    Gorton and Rich Scott, in case there “was any trouble.” After
    3
    Brown again assigned the search to Williams, who gathered some addi-
    tional information within weeks. On this timetable, Williams would have
    completed her assignment while the investigation discussed below was in
    progress. Scott did not call Williams as a witness and there is no evidence
    about what this additional information included, whether Brown herself
    ever received it and, if so, whether she passed it on to her superiors.
    1728         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    the meeting, Brown instructed the two managers to unplug
    Scott’s computer, which they placed in Brown’s office, where
    it was “made operational.”
    Once Scott was placed on administrative leave, Fuller
    directed John Turner, an investigator on her staff, to conduct
    an internal inquiry into Scott’s possible violations of County
    work rules or policies. Brown was not involved in framing the
    charges to be investigated, outlining the direction of the inves-
    tigation or providing a list of witnesses. Rather, Turner met
    with Collette Umbras, the human relations department man-
    ager, to outline which official work rules were implicated by
    Scott’s supposed misconduct. The charges ultimately included
    misusing County property, conducting personal business on
    County time, inappropriately accessing the emails and docu-
    ments of other employees and engaging in prohibited work-
    place harassment and prejudicial acts. Fuller sent Scott a letter
    to notify her of these charges as Turner began his investiga-
    tion.
    Over the course of his investigation, Turner interviewed 22
    witnesses, including Brown and Scott. He also reviewed
    Scott’s journal and several of her emails. Brown’s role in the
    investigation was limited to answering Turner’s questions;
    she did not provide him with any written materials. For her
    own part, Scott admitted to Turner that she had engaged in the
    conduct that had led to the charges against her, and she con-
    ceded that she was fully aware of the policies, procedures and
    rules governing the use of County property — particularly
    those prohibiting harassment and discrimination and access-
    ing databases for personal or non-business related reasons.
    She said, however, that she did not know her behavior vio-
    lated any of these rules and claimed that Hogue knew about
    and had authorized many of her actions.
    At the conclusion of his investigation, Turner produced a
    report to Fuller detailing his findings and recommending that
    all of the charges against Scott be sustained. Fuller sent a let-
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                    1729
    ter to Scott describing the report’s findings and, after meeting
    with Scott to provide her with an opportunity to explain her
    actions, decided to terminate her employment. Fuller testified
    that although Scott’s journal was the reason she decided to
    initiate the investigation, she based her decision to fire Scott
    on all of the evidence that Turner procured during his investi-
    gation. As detailed in her termination letter to Scott, Fuller
    “removed” certain charges but nevertheless concluded that the
    remainder of the sustained charges — misusing County prop-
    erty, conducting personal business on County time, accessing
    other employees’ emails and documents and engaging in
    workplace harassment and prejudicial acts — warranted
    Scott’s termination. The magnitude of Scott’s misconduct was
    on a scale that was completely different from what Fuller had
    seen in other employees and destroyed her ability to trust
    Scott to uphold DCJ’s policies in the future. Throughout her
    trial testimony, Fuller reiterated that Brown played no role in
    her decision to fire Scott. Scott did not produce any evidence
    to the contrary.
    Scott brought a retaliatory discharge lawsuit in federal dis-
    trict court against the County and Brown, alleging she was
    wrongfully terminated because she had filed the BOLI com-
    plaint and openly criticized both DCJ and Brown, and claim-
    ing these were protected activities under the First Amendment
    and 42 U.S.C. § 1983 as well as under Oregon’s Whistle-
    blower Act. After Brown moved unsuccessfully for summary
    judgment, a jury found in Scott’s favor and awarded her eco-
    nomic damages of $140,000, noneconomic damages of
    $10,000 and punitive damages of $500,000. The district court
    denied Brown’s motion for JMOL and this timely appeal fol-
    lowed.4
    4
    On appeal, Brown also challenges (1) the district court’s denial of her
    motions for summary judgment and to exclude Landis’ testimony and (2)
    the award of punitive damages. Because we reverse the denial of JMOL,
    we do not reach the denial of Brown’s motion in limine or the question
    of punitive damages. We do not review the district court’s pretrial denial
    1730           LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    STANDARD OF REVIEW
    “We review the denial of a motion for a judgment as a mat-
    ter of law de novo.” Ostad v. Oregon Health Sci. Univ., 
    327 F.3d 876
    , 881 (9th Cir. 2003). We view the evidence in the
    light most favorable to the party in whose favor the jury
    returned a verdict and draw all reasonable inferences in her
    favor. See id.; Gilbrook v. City of Westminster, 
    177 F.3d 839
    ,
    847-48 (9th Cir. 1999). “Judgment as a matter of law is
    proper when the evidence permits only one reasonable con-
    clusion and the conclusion is contrary to that reached by the
    jury.” 
    Ostad, 327 F.3d at 881
    . Nevertheless, a reasonable
    inference “cannot be supported by only threadbare conclusory
    statements instead of significant probative evidence.” Barnes
    v. Arden Mayfair, Inc., 
    759 F.2d 676
    , 680-81 (9th Cir. 1985)
    (internal quotation marks omitted); see also Genthe v. Lin-
    coln, 
    383 F.3d 713
    , 716 (8th Cir. 2004) (noting within the
    context of a motion for JMOL that an inference is reasonable
    “when it may be drawn from the evidence without resort to
    speculation” (internal quotation marks omitted)); Willis v.
    Marion County Auditor’s Office, 
    118 F.3d 542
    , 545 (7th Cir.
    1997) (noting within the context of a motion for JMOL that
    a “mere scintilla is not enough” to sustain a verdict for the
    prevailing party).5 Consequently, JMOL is appropriate when
    of Brown’s motion for summary judgment because “[t]he denial of a
    motion for summary judgment is not reviewable on an appeal from a final
    judgment entered after a full trial on the merits.” Locricchio v. Legal
    Servs. Corp., 
    833 F.2d 1352
    , 1359 (9th Cir. 1987); see also Price v.
    Kramer, 
    200 F.3d 1237
    , 1243 (9th Cir. 2000). Finally, we deny Brown’s
    request that we ignore Scott’s supplemental excerpt of record. “Although
    not models of compliance with the Rules, [Scott’s] . . . excerpts of record
    are sufficient to apprise this court of the relevant issues before it.”
    Dominguez-Curry v. Nev. Transp. Dep’t, 
    424 F.3d 1027
    , 1033 n.2 (9th
    Cir. 2005).
    5
    Although Barnes analyzed a summary judgment motion, the Supreme
    Court has explained that the inquiry under summary judgment and JMOL
    motions is in essence the same. See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 251-52 (1986).
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                     1731
    the jury could have relied only on speculation to reach its ver-
    dict.
    I.
    [1] “To state a First Amendment claim against a public
    employer, an employee must show: (1) the employee engaged
    in constitutionally protected speech; (2) the employer took
    ‘adverse employment action’ against the employee; and (3)
    the employee’s speech was a ‘substantial or motivating factor
    for the adverse action.’ ” Marable v. Nitchman, 
    511 F.3d 924
    ,
    929 (9th Cir. 2007) (quoting Coszalter v. City of Salem, 
    320 F.3d 968
    , 973 (9th Cir. 2003), citing Bd. of County Comm’rs,
    Wabaunsee County, Kan. v. Umbehr, 
    518 U.S. 668
    , 675
    (1996)); see also Garcetti v. Ceballos, 
    547 U.S. 410
    (2006);
    Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 287 (1977); Settlegoode v. Portland Pub. Sch., 
    371 F.3d 503
    , 510 (9th Cir. 2004). “If the plaintiff makes those show-
    ings, then the burden shifts to the defendant to show ‘by a
    preponderance of the evidence that it would have reached the
    same decision . . . even in the absence of the [plaintiff’s] pro-
    tected conduct.’ ” 
    Gilbrook, 177 F.3d at 854
    (quoting Mt.
    
    Healthy, 429 U.S. at 287
    ).
    [2] Brown expressly assumed in her appellate briefs that
    Scott’s BOLI complaint was protected speech.6 Scott’s termi-
    nation plainly qualifies as an adverse employment action. See
    
    Umbehr, 518 U.S. at 675
    ; Ray v. Henderson, 
    217 F.3d 1234
    ,
    6
    We deny Brown’s subsequent request for a remand in light of 
    Garcetti, 547 U.S. at 421
    , in which the Supreme Court held that “when public
    employees make statements pursuant to their official duties, . . . the Con-
    stitution does not insulate their communications from employer disci-
    pline.” Brown’s motion for JMOL neither challenged nor reserved the
    issue of protected speech for appeal. “It is well-established that an appel-
    late court will not consider issues that were not properly raised before the
    district court.” Doi v. Halekulani Corp., 
    276 F.3d 1131
    , 1140 (9th Cir.
    2002) (internal quotation marks omitted).
    1732            LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    1237 (9th Cir. 2000).7 Thus the first two prongs of Mt.
    Healthy’s prima facie test are not at issue. Instead, Brown
    argues that Scott’s protected conduct was not a “substantial or
    motivating factor” in her termination, which would have
    occurred even in the absence of this conduct, because even
    assuming that the jury could have reasonably found that
    Brown harbored animosity toward Scott, Fuller made the final
    and independent decision to terminate Scott.
    We have assessed the liability of a subordinate supervisor
    who was not the final decision maker under Mt. Healthy’s
    “substantial or motivating” standard as well as its mixed
    motive approach. Compare 
    Ostad, 327 F.3d at 882-83
    (ana-
    lyzing facts under “substantial or motivating” standard), with
    
    Gilbrook, 177 F.3d at 853-56
    (analyzing facts under mixed
    motive standard). Under either rubric, however, the focus is
    on the question of causation. See 
    Ostad, 327 F.3d at 882-83
    (relying on Gilbrook in its analysis); 
    Gilbrook, 177 F.3d at 855
    (citing opinions addressing prima facie cases of discrimi-
    nation in its analysis). Causation is the dispositive issue here
    as well. Consequently, the critical questions are: (1) whether
    a final decision maker’s independent investigation and termi-
    nation decision, responding to a biased subordinate’s initial
    report of misconduct, can negate any causal link between the
    subordinate’s retaliatory motive and an employee’s termina-
    tion; and, if so, (2) whether the record here compels the con-
    7
    We limit the scope of our inquiry to Scott’s ultimate termination.
    Although being placed on administrative leave might qualify as an adverse
    employment action and we have suggested an investigation of an
    employee might so qualify, see, e.g., Poland v. Chertoff, 
    494 F.3d 1174
    ,
    1180 (9th Cir. 2007); Ulrich v. City and County of San Francisco, 
    308 F.3d 968
    , 977 (9th Cir. 2002), Scott neither argued these theories in the
    district court nor in her briefs on appeal, consistently stating that her retal-
    iatory conduct claim was based solely on her discharge. Accordingly, we
    do not consider whether initiating the inquiry into Scott’s activities or
    placing her on administrative leave were themselves adverse employment
    actions for which Brown could be held liable independent of Scott’s termi-
    nation.
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                     1733
    clusion that Fuller conducted an independent investigation
    and made a wholly independent decision to terminate Scott
    such that Brown cannot be held liable for causing her to be
    fired.
    [3] In Gilbrook, we established that a “subordinate cannot
    use the non-retaliatory motive of a superior as a shield against
    liability if that superior never would have considered a dis-
    missal but for the subordinate’s retaliatory conduct.”177 F.3d
    at 855. We expressly declined, however, to decide “what the
    result should be, as a matter of law, if the facts showed that
    the final decision-maker made a wholly independent, legiti-
    mate decision to discharge the plaintiff, uninfluenced by the
    retaliatory motives of a subordinate.” Id.; see also 
    Ostad, 327 F.3d at 883
    . The record before us requires us to answer this
    heretofore open question.
    II.
    [4] Most of this circuit’s retaliatory motivation jurispru-
    dence has arisen from cases in which the issue has been
    whether the final decision maker was liable because she was
    retaliating against the employee or her decision was tainted by
    the retaliatory motivation of a subordinate. See, e.g., Poland
    v. Chertoff, 
    494 F.3d 1174
    (9th Cir. 2007). In the latter situa-
    tion, the subordinate’s unlawful motivation has been imputed
    upstream to the final decision maker. In the present case it is
    the supposedly biased subordinate, Brown, who is herself
    being charged with liability. Nonetheless, these “upstream
    imputation” cases are relevant to our analysis. See 
    Gilbrook, 177 F.3d at 855
    (citing imputation cases in its discussion of
    subordinate liability).8 If a final decision maker is not liable
    8
    Claims brought under Title VII and the Age Discrimination in Employ-
    ment Act apply a different burden shifting framework than § 1983 claims,
    and we do not intimate that these cases are controlling here. See 
    Poland, 494 F.3d at 1180
    n.1; Freitag v. Ayers, 
    468 F.3d 528
    , 543 n.9 (9th Cir.
    2006); Allen v. Iranon, 
    283 F.3d 1070
    , 1074-75 (9th Cir. 2002). Rather,
    we cite these cases for their informative discussions about causation. See
    
    Gilbrook, 177 F.3d at 855
    (analyzing a § 1983 retaliation claim but dis-
    cussing Title VII retaliation and discrimination cases for their analysis of
    causation).
    1734          LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    when her decision to terminate a plaintiff is sufficiently inde-
    pendent from a subordinate’s unlawful motive, the circum-
    stance proving that independence may also show that the
    subordinate did not cause the plaintiff’s termination.
    [5] Gilbrook, in specifically addressing a subordinate
    supervisor’s liability, did observe that as a general matter the
    nature of § 1983 liability is such that “the ‘requisite causal
    connection can be established not only by some kind of direct
    personal participation in the [termination], but also by setting
    in motion a series of acts by others which the actor knows or
    reasonably should know would cause others to inflict the con-
    stitutional injury.’ 
    177 F.3d at 854
    (citing and quoting John-
    son v. Duffy, 
    588 F.2d 740
    , 743-44 (9th Cir. 1978) (holding
    sheriff could be liable for his omission to perform duties
    imposed by state law that deprived the plaintiff of his property
    without due process)). This general principle, as applied
    within the context of the employment setting, cannot be taken
    so literally as to convert into a constitutional tort a subordi-
    nate supervisor’s mere participation in, while performing her
    normal supervisory responsibilities, the initiation of a disci-
    plinary process that results in an employee’s otherwise appro-
    priate and lawful termination. As we recognized in Gilbrook
    itself, a superior’s nonretaliatory employment decision “does
    not automatically immunize a subordinate against liability for
    her retaliatory acts”; subordinate liability instead turns on the
    “intensely factual” determination of whether the superior
    never would have made this decision “but for the subordi-
    nate’s retaliatory conduct.
    177 F.3d at 854
    -55 (emphasis
    added).
    Here, it is not clear that Scott relies on Brown’s role in
    bringing the journal to Fuller’s attention or her participation
    in the administrative leave decision as alone sufficient to sup-
    port the jury’s verdict finding Brown liable for Scott’s termina-
    tion.9 Even if we consider those events, however, the evidence
    9
    See n. 8, supra.
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                    1735
    negates any inference that Fuller would not have taken any
    action against Scott but for Brown’s retaliatory motivations.
    The journal surfaced in a workplace investigation of possible
    employee misconduct, and several DCJ employees became
    aware of its existence contemporaneously with Brown. Brown
    was engaged in activities typical and appropriate for her posi-
    tion when she became aware of the journal. The journal itself
    was accidentally discovered during an investigation of
    another employee’s conduct, and Scott did not allege that
    Brown targeted her for investigation or selectively reported
    her misconduct.10 Brown was at most a part of a process that
    included several other employees who were focused on disci-
    plining violations of workplace rules and policies. Given the
    numerous potential rules violations revealed in the journal and
    the actions taken by the human resources department, it is
    unreasonable to conclude that Fuller — who had already initi-
    ated the inquiry into another employee’s misuse of emails —
    would not have been informed of or reacted to the journal but
    for Brown’s animus against Scott.
    [6] Given the evidence that Fuller made an independent,
    principled decision for her own reasons to investigate and
    eventually terminate Scott, there was by definition no “consti-
    tutional injury.” 
    Id. at 854.
    Scott was terminated for violating
    County and DCJ rules through actions she admitted she had
    committed. As we emphasized in Gilbrook, “[w]e do not hold
    that a final decision-maker who lacks any improper motive
    10
    Judge Berzon says she does not see a difference between “targeting
    someone for investigation and retaliating against them by reporting them.”
    Concurrence at 1743. What we mean is that Scott did not claim that
    Brown selectively enforced employee regulations only against her, while
    ignoring violations by other employees. Nor did Scott show that Brown
    monitored her behavior more closely in the hopes of reporting her for mis-
    conduct; indeed, Brown found Scott’s journal in the course of investigat-
    ing another employee. This distinction is relevant in showing that Scott’s
    misconduct was not brought to Fuller’s attention solely because of
    Brown’s animus such that Fuller never would have made the termination
    decision but for Brown’s conduct. See 
    Gilbrook, 177 F.3d at 854
    -55.
    1736          LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    never can absolve a subordinate of liability for his or her
    retaliatory acts, any more than we hold that such a decision-
    maker always can absolve the 
    subordinate.” 177 F.3d at 855
    (emphasis in original). On the facts of this case, where the
    evidence shows “that the final decision-maker made a wholly
    independent, legitimate decision to discharge the plaintiff,
    uninfluenced by the retaliatory motives of” Brown, we hold
    that the neutrality of the decisionmaking process eliminated
    any “causal” link to Brown’s bias. 
    Id. A recent
    “upstream” case in which a biased subordinate’s
    involvement in an adverse employment action rose to the
    level of tainting the final decision to terminate is illustrative.
    See Poland, 
    494 F.3d 1174
    . Poland held that the Custom Ser-
    vice’s administrative investigation of the supervisor’s retalia-
    tory charges did not “shield[ ]” the Customs Service from
    imputed liability because “the allegedly independent adverse
    employment decision was not actually independent” due to
    the subordinate supervisor’s significant involvement in the
    decisionmaking process. 
    Id. at 1182.
    We held that while an
    initiation of an investigation would not “on its own” be
    enough to impute a subordinate’s animus, the biased subordi-
    nate “had a pervasive influence on the administrative inquiry
    that led to the adverse employment action.” 
    Id. at 1183.
    The
    supervisor specifically requested the investigation, sent a
    lengthy memo and supporting documentation outlining
    numerous incidents of the plaintiff’s alleged malfeasance and
    provided the list of 21 witnesses who were contacted during
    the investigation. See id.; see also Dominguez-Curry v.
    Nevada Transp. Dep’t, 
    424 F.3d 1027
    , 1032-33, 1039-40 (9th
    Cir. 2005) (imputing animus in a Title VII failure-to-promote
    claim when the subordinate was one of two employees who
    interviewed and ranked the petitioner); Perez v. Curcio, 
    841 F.2d 255
    , 258 (9th Cir. 1988) (imputing animus in an age dis-
    crimination action when the final decision maker relied on
    reports written by the subordinate both in initiating the inves-
    tigation and ultimately in demoting the plaintiff).11 We have
    11
    Compare, e.g., Gee v. Principi, 
    289 F.3d 342
    , 346-47 & n.4 (5th Cir.
    2002) (holding evidence of subordinates’ animus precluded summary
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                    1737
    likewise affirmed the liability of subordinates when they
    wielded a similarly significant degree of influence over the
    final decision maker’s adverse employment decision. For
    example, in Gilbrook, we held that a final, unbiased decision
    maker did not eliminate the liability of two subordinates
    where the subordinates had “participated directly” in a multi-
    tiered termination process. 
    Gilbrook, 177 F.3d at 853
    . There,
    one subordinate was the “driving force” behind the investiga-
    tion of the terminated employees and made the initial decision
    to terminate them. The second subordinate then conducted
    hearings on the employees’ appeals and affirmed the termina-
    tions. We held that a third and final decision maker with the
    power to ratify, reject or modify the termination decisions did
    not cut off the liability of the biased subordinates because
    there was evidence that the employees would not have been
    disciplined but for the subordinates’ actions in bringing the
    charges in the first place. See 
    id. at 850-51,
    853; see also
    
    Ostad, 327 F.3d at 883
    (holding subordinate liable when he
    judgment regarding the final decision maker’s liability when the subordi-
    nates “made comments critical” of the plaintiff at “the critical meeting”
    with the final decision maker and a third party who was present at the
    meeting “stated that it was his impression that by the end of the meeting,
    the negative statements had created a general consensus that [the peti-
    tioner] would not be selected”); Griffin v. Washington Convention Ctr.,
    
    142 F.3d 1308
    , 1311 (D.C. Cir. 1998) (holding evidence of subordinate’s
    animus relevant to final decision maker’s liability when he “was [the deci-
    sion maker’s] chief source of information regarding [plaintiff’s] job per-
    formance, repeatedly urged [decision maker] to terminate [plaintiff], . . .
    helped develop the tests used to assess [plaintiff], was responsible for
    evaluating [plaintiff’s] success on those tests, and was in contact with
    [decision maker] at every significant step of the decisionmaking process”);
    Long v. Eastfield College, 
    88 F.3d 300
    , 307 n.8 (5th Cir. 1996) (holding
    evidence of subordinates’ animus precluded summary judgment regarding
    final decision maker’s liability when subordinates recommended plain-
    tiffs’ termination and directed other employees to prepare written state-
    ments presented to final decision maker, and the only explanation
    plaintiffs received from final decision maker regarding their discharge was
    that he “made a decision to uphold the recommendation of your supervi-
    sor[s] to terminate your employment”).
    1738         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    provided the primary source of information on which the final
    decision maker “substantially relied . . . to reach the decision
    to terminate”).
    The facts before us here show a workplace in which the ini-
    tial report of possible employee misconduct came from a pre-
    sumably biased supervisor, but whose subsequent
    involvement in the disciplinary process was so minimal as to
    negate any inference that the investigation and final termina-
    tion decision were made other than independently and without
    bias. We must not “place an employee in a worse ‘position as
    a result of the exercise of constitutionally protected conduct
    than he would have occupied had he done nothing.’ ” Gil-
    
    brook, 177 F.3d at 855
    (citing Mt. 
    Healthy, 429 U.S. at 285
    ).
    But concomitantly the Supreme Court has admonished that
    we must not “place an employee in a better position as a
    result of the exercise of constitutionally protected conduct
    than he would have occupied had he done nothing . . . . [T]hat
    [employee] ought not to be able, by engaging in such conduct,
    to prevent his employer from assessing his performance
    record . . . .” Mt. 
    Healthy, 429 U.S. at 285
    -86.
    III.
    [7] With the foregoing principles and spectrum of cases as
    our guide, and recognizing “that the ultimate question of the
    subordinate’s liability ‘is an intensely factual one, the results
    of which will vary depending on the circumstances,’ ” 
    Ostad, 327 F.3d at 883
    (quoting 
    Gilbrook, 177 F.3d at 855
    ), we hold
    that Brown cannot be found liable based on her limited
    involvement in the chain of events that ultimately led to
    Scott’s termination. The jury could have reasonably found
    that Brown was involved in initiating the investigation of
    Scott after the discovery of her journal and in the decision to
    place her on administrative leave. But neither Brown’s role in
    the events leading up to the investigation nor the evidence of
    her participation in that inquiry rises to the level of involve-
    ment in or influence on Fuller’s termination decision that
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                     1739
    would allow the jury reasonably to find that Brown’s animus
    was a “ ‘substantial’ or ‘motivating’ factor” in Fuller’s deci-
    sion to fire Scott. 
    Gilbrook, 177 F.3d at 853
    -54 (quoting Mt.
    
    Healthy, 429 U.S. at 287
    ). Instead, the record of Fuller’s inde-
    pendent actions and judgments compels the conclusion that
    she was not influenced by any retaliatory motive on Brown’s
    part.
    As to the discovery of Scott’s apparently improper journal
    that triggered the inquiry into her conduct, it is relevant that
    Brown became aware of the document only incidentally
    through an investigation of another employee initiated by Ful-
    ler and the human resources department. Moreover, although
    Brown was present at the meeting where, according to stan-
    dard practice, it was decided that Scott would be placed on
    administrative leave pending the investigation, that decision
    did not make Scott’s termination a foregone conclusion.
    Instead, senior management, aware of Scott’s apparent mis-
    conduct, pursued an inquiry into the alleged violations. There
    is no evidence that but for Brown, Fuller would have ignored
    the journal and let the matter drop. That other DCJ employ-
    ees, including the human resources manager, became aware of
    and reacted to the journal suggests the very opposite. Accord-
    ingly, the relevant question remains whether Brown improp-
    erly influenced the subsequent investigation or the decision to
    terminate Scott itself such that she can be held liable for Ful-
    ler’s decision. On this record, the only reasonable finding is
    that she did not.12
    12
    Rebecca Hackenberg, another DCJ employee, testified that she told
    Hogue the administrative leave “sure seems like retaliation about that
    BOLI complaint, doesn’t it?”, and that Hogue “kind of looked sideways
    out of the window, and [ ] went, ‘yeah.’ ” This testimony does not estab-
    lish Brown’s liability for Scott’s termination. First, Hackenberg did not
    mention Brown throughout her entire testimony, let alone implicate her as
    a source for the alleged retaliation. Second, as we have noted, the adminis-
    trative leave did not make Scott’s termination a foregone conclusion.
    1740         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    There is no evidence that Brown outlined possible reasons
    for Scott’s discharge or recommended her termination, either
    at the initial meeting or thereafter. Cf. 
    Gilbrook, 177 F.3d at 850
    , 853-55; 
    Ostad, 327 F.3d at 880
    , 883. To the contrary,
    Umbras outlined potential violations Turner was to investi-
    gate, and it was Turner who recommended at the conclusion
    of his investigation which charges should be sustained. Scott
    asks us to hold that a reasonable juror could have inferred that
    Brown “was the investigation” because (1) Scott’s computer
    was placed in Brown’s office after Scott was placed on
    administrative leave and (2) Williams completed the follow
    up research ordered by the human resources department “to
    see if . . . there were any other e-mails from [Scott] or jobs
    or anything else that pertained to her” while Turner was still
    conducting his investigation. Scott appears to argue that these
    circumstances alone permitted the jury to find that Brown was
    an influential player in Turner’s investigation who searched
    for and provided documentary evidence that actually led to
    Scott’s termination. But such an inference would be pure
    speculation, as Scott presented no evidence that Brown dis-
    covered any information from Scott’s computer or from Wil-
    liams, much less that she provided any such information to
    Turner or Fuller. Significantly, Scott deposed Williams but
    neither introduced her deposition testimony nor called her as
    a witness to tell the jury what, if anything, she had turned over
    to Brown. Scott’s suppositions are “only threadbare conclu-
    sory statements” that cannot support a reasonable inference
    that Brown influenced the decision to terminate Scott. Cf.
    
    Barnes, 759 F.2d at 680-81
    (internal quotation marks omit-
    ted).
    [8] Instead, the record shows that Brown played a very lim-
    ited role in the investigation. She did not provide a witness list
    or any documentary evidence during Turner’s investigation,
    and there is no evidence that Brown told Turner anything
    inappropriate during their interview. Cf. 
    Poland, 494 F.3d at 1183
    . Nor did the investigation “substantially rel[y]” or “de-
    pend[ ] heavily” on Brown, who was one of 22 witnesses Tur-
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY             1741
    ner interviewed. Cf. 
    Ostad, 327 F.3d at 880
    , 883 (holding
    subordinate liable when the decision maker “depended heavi-
    ly” on his testimony, which “took up 217 pages of the hear-
    ing’s 403-page transcript”); Stacks v. Sw. Bell Yellow Pages,
    Inc., 
    27 F.3d 1316
    , 1323 (8th Cir. 1994) (noting a final deci-
    sion maker cannot escape liability when the facts on which he
    “rel[ies] have been filtered” by a subordinate with illegitimate
    motives). Brown’s minimal participation was too limited and
    constrained to have tainted the investigative process, particu-
    larly when it was part of Brown’s job to cooperate with Tur-
    ner’s inquiry.
    [9] Fuller’s substantial role in the process that resulted in
    Scott’s termination is as important as Brown’s minimal partic-
    ipation. Fuller authorized the thorough investigation of the
    charges against Scott. Once she received Turner’s report, she
    critically examined its contents, meeting with Scott to allow
    her to present any mitigating evidence and ultimately reject-
    ing two of Turner’s recommendations. Scott herself admitted,
    “I actually thought that she was listening, and she said she
    would consider everything.” As outlined in the termination
    letter composed and signed by Fuller, in the final analysis she
    fired Scott for violations of formal work rules, executive
    orders and contractual agreements. Scott admitted she was
    fully aware of these policies and rules, and both Fuller and
    Umbras emphasized that they had never before seen viola-
    tions of this magnitude. Under these circumstances, no rea-
    sonable juror could have concluded that the investigative
    process was a “sham or conduit” for Brown’s animosity or
    that Fuller was “duped” into terminating Scott. 
    Willis, 118 F.3d at 547-48
    . To the contrary, the record shows that Fuller’s
    decision was based on her own analysis that “was not jaded
    by anyone else’s subjective and possibly [illegitimate] evalua-
    tion.” 
    Id. at 547.
    Accordingly, we hold that, as a matter of
    law, Fuller’s “wholly independent, legitimate decision to dis-
    charge [Scott], uninfluenced by the retaliatory motives of a
    subordinate” prohibited the jury from finding Brown liable for
    Scott’s termination. 
    Gilbrook, 177 F.3d at 855
    .
    1742        LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    Finally, practical considerations also animate our conclu-
    sion. As discussed above, all aspects of Brown’s limited
    involvement in this case were at the express direction or under
    the authority of her superiors in the management structure. To
    say that the County’s investigative process was fatally and
    irrevocably tainted by Brown’s overall limited involvement
    would stymie legitimate corporate management and disci-
    pline, which must necessarily involve and rely upon supervi-
    sory staff. Cf. City of San Diego v. Roe, 
    543 U.S. 77
    (2004)
    (noting the “common-sense realization that government
    offices could not function if every employment decision
    became a constitutional matter”); Brooks v. City of San
    Mateo, 
    229 F.3d 917
    , 928 (9th Cir. 2000) (limiting the type
    of behavior that constitutes an adverse employment action
    based on the concern “that employers will be paralyzed into
    inaction once an employee has [engaged in protected con-
    duct], making such [conduct] tantamount to a ‘get out of jail
    free’ card for employees engaged in job misconduct”). Absent
    evidence that a supervisor abuses her participation to advance
    a retaliatory agenda, we decline to endorse such a result in
    this case.
    CONCLUSION
    [10] On the evidence presented to the jury, we hold as a
    matter of law that Fuller’s wholly independent decisionmak-
    ing negated any causal connection between Brown’s retalia-
    tory bias and Scott’s termination. Brown therefore is not
    liable for any damages Scott suffered as a result of her dis-
    charge, and the district court incorrectly denied Brown’s
    motion for a JMOL. We reverse the court’s judgment and
    remand for entry of judgment for Brown.
    REVERSED and REMANDED.
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY             1743
    BERZON, Circuit Judge, concurring in the judgment:
    Although I concur in the result of this case, I do not agree
    with the majority’s conclusion that there was insufficient evi-
    dence from which a reasonable jury could have found that
    Brown’s retaliatory animus was a “substantial or motivating
    factor,” see Gilbrook v. City of Westminster, 
    177 F.3d 839
    ,
    853 (9th Cir. 1999), in Fuller’s decision to terminate Scott. As
    the majority intimates, a supervisor who, with retaliatory
    intent, selectively reports an employee to a superior is liable
    for the employee’s termination even if the supervisor does not
    influence the resulting investigation or termination decision.
    See Maj. Op. at 1734-35. In this case, the majority concludes
    that Brown discovered Scott’s journal and reported it to Fuller
    while “engaged in activities typical and appropriate for her
    position,” and then states that Scott does not allege that
    Brown “targeted her for investigation or selectively reported
    her misconduct.” See 
    id. But Scott
    obviously does so allege,
    she has maintained from the outset — and the jury must have
    found — that Brown reported her to Fuller for a retaliatory
    reason. The difference between targeting someone for investi-
    gation and retaliating against them by reporting them, know-
    ing they would thereupon be investigated, entirely escapes
    me. So, the majority can only be holding that any retaliatory
    animus that Brown harbored against Scott did not motivate
    her decision to report Scott to Fuller, and that a reasonable
    jury could not have concluded otherwise.
    I disagree. I would hold that Scott met her burden of estab-
    lishing that Brown’s retaliatory animus was a “substantial or
    motivating factor” in Fuller’s decision to terminate Scott. See
    
    Gilbrook, 177 F.3d at 853
    . The majority’s implicit conclusion
    to the contrary — that Brown was not motivated by retaliatory
    reasons but was just doing her job — disregards our mandate
    to view “the evidence in the light most favorable to the party
    in whose favor the jury returned a verdict and draw all reason-
    able inferences in her favor,” and fails to accord the required
    deference to a reasonable jury decision. Maj. Op. at 1730 (cit-
    1744         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    ing Ostad v. Oregon Health Sci. Univ., 
    327 F.3d 876
    , 881 (9th
    Cir. 2003)); see also 
    id. (“Judgment as
    a matter of law is
    proper when the evidence permits only one reasonable con-
    clusion and the conclusion is contrary to that reached by the
    jury.”).
    Alternatively, the majority can possibly be read as holding
    that a supervisor, even if motivated by retaliatory animus,
    may not be held liable for instigating an investigation likely
    to result in an adverse action, as long as the superior who
    makes the final decision does so independently. If so, the
    holding squarely conflicts with Gilbrook, which held to the
    contrary.
    At the same time, the facts of this case indicate that Fuller’s
    investigation would have occurred even without Brown’s
    instigation. I would therefore hold that Brown also met her
    burden, under part two of the two-part Gilbrook/Mt. Healthy
    burden-shifting framework, of showing that Scott’s discharge
    would have occurred “even in the absence of the protected
    conduct.” See 
    Gilbrook, 177 F.3d at 854
    ; Maj. Op. at 1731,
    1739. My decision to reverse the judgment, in other words,
    rests on Brown’s successful affirmative defense, not on
    Scott’s failure to establish her initial case.
    A.   The “Substantial or Motivating Factor” Require-
    ment
    Under the two-part burden-shifting framework outlined by
    the Supreme Court in Mt. Healthy City School District Board
    of Education v. Doyle, 
    429 U.S. 274
    (1977), and applied by
    this Court in Gilbrook, the plaintiff bears the initial burden of
    demonstrating that her protected conduct was a “ ‘substantial’
    or ‘motivating’ factor in the defendant’s employment deci-
    sion.” 
    Gilbrook, 177 F.3d at 853
    -54 (quoting Mt. 
    Healthy, 429 U.S. at 287
    ). Once the plaintiff makes this showing, the bur-
    den shifts to the defendant to show “ ‘by a preponderance of
    the evidence that it would have reached the same decision . . .
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY              1745
    even in the absence of the plaintiff’s protected conduct.’ ” 
    Id. (quoting Mt.
    Healthy, 429 U.S. at 287
    ).
    In this case, as in Gilbrook, the defendant is the supervisor
    who initially reported the plaintiff’s misconduct, not the
    employer or the individual who made the ultimate decision to
    terminate. See 
    Gilbrook, 177 F.3d at 853
    -54. For this reason,
    vicarious liability cases such as Poland v. Chertoff, 
    494 F.3d 1174
    (9th Cir. 2007), are, contrary to the majority’s reliance
    on them, not analogous. Those cases are concerned with iden-
    tifying situations in which it would be equitable to hold an
    otherwise faultless superior liable for the acts of an admit-
    tedly culpable subordinate. See SPEISER ET. AL, THE AMERICAN
    LAW OF TORTS § 4:1 (“[Vicarious liability] is an interesting
    form of social policy adjustment under which, even though a
    person . . . is himself personally without fault, legal public
    policy renders him nevertheless liable.”). As a result, the
    focus of vicarious liability cases is properly on the actions of
    the superior, and therefore on whether those actions were
    tainted by the subordinate’s animus.
    In addition, vicarious liability cases implicate very different
    policy considerations than subordinate liability cases, particu-
    larly with respect to the protection of an employee’s First
    Amendment rights. In the vicarious liability context, the con-
    cern is that, in the absence of a rule imposing vicarious liabil-
    ity, an employer could evade liability by isolating the final
    decision-maker and, in essence, willfully ignoring the bias of
    a subordinate. Thus, the inquiry in a vicarious liability case is
    into whether the superior’s investigation and termination deci-
    sion were truly independent.
    By contrast, the concern in a subordinate liability case is
    that too lenient a standard will permit supervisors deliberately
    to target individuals who have engaged in protected activity,
    knowing that their actions will lead superiors lacking retalia-
    tory animus to harm the individual. The issue is not, in other
    words, whether the employer is acting with willful ignorance
    1746           LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    (which an “independent investigation” requirement is good at
    measuring), but rather whether the subordinate supervisor is
    deliberately placing the subordinate in the way of harm
    (which the “independent investigation” requirement only
    partly measures). Accordingly, as will appear, the inquiry in
    a subordinate liability case is broader, requiring not only a
    determination as to whether the investigation and termination
    decision were influenced by the biased subordinate, but also
    whether the subordinate initiated those proceedings in retalia-
    tion for the employee’s protected activity.
    The focus in a case such as this one, then, must be on the
    supervisor’s conduct — specifically on whether that conduct
    (a) was a “substantial or motivating factor” in the employee’s
    termination, and (b) was motivated by retaliatory animus.
    I agree with the majority that, on this record, Brown did not
    in any substantial way influence Fuller’s investigation once it
    began, or Fuller’s ultimate decision to terminate Scott.1 See
    Maj. Op. 1739-42. Brown’s conduct after she reported the
    journal to Fuller was therefore not a cause of Scott’s termina-
    tion, regardless of its motivation.
    1
    On page 1736, the majority states that a supervisor must have a “signif-
    icant” influence on a superior’s investigation in order for that investigation
    to have been impermissibly tainted. Maj. Op. at 1736. In the next sen-
    tence, it quotes a passage from Poland in which the court noted that the
    supervisor in that case had “had a pervasive influence on the administra-
    tive inquiry that led to the adverse employment action.” 
    Id. I do
    not read
    the majority’s reference to the quoted passage as suggesting that an
    employee must show that the supervisor had a “pervasive,” rather than just
    a “significant,” influence on the superior’s investigation. The Poland
    court’s conclusion about the high level of the supervisor’s influence was
    merely a statement about the facts in that case, not a statement of the stan-
    dard an employee is required to meet. Every time Poland states the gener-
    ally applicable standard, it excludes the term “pervasive.” See, e.g.,
    
    Poland, 494 F.3d at 1184
    (“In summary, we hold that . . . the plaintiff
    must show that the allegedly independent adverse employment decision
    was not actually independent because the biased subordinate influenced or
    was involved in the decision or the investigation leading thereto.”)
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                       1747
    But Brown’s lack of participation in Fuller’s investigation
    and decision to terminate does not end the causation inquiry.2
    Rather, we must also consider whether Brown, while acting
    with retaliatory animus, “set[ ] in motion a series of acts by
    others which [she knew] or reasonably should [have known]
    would cause others to inflict the constitutional injury.” See
    
    Gilbrook, 177 F.3d at 854
    (noting that the “requisite causal
    connection can be established not only by some kind of direct
    personal participation in the deprivation, but also by setting in
    motion a series of acts by others which the actor knows or
    reasonably should know would cause others to inflict the con-
    stitutional injury”) (quoting Johnson v. Duffy, 
    588 F.2d 740
    ,
    743-44 (9th Cir. 1978)); see also RESTATEMENT (SECOND) OF
    TORTS § 433 (1965) (“The following considerations are . . .
    important in determining whether the actor’s conduct is a sub-
    stantial factor in bringing about harm to another: . . . (b)
    whether the actor’s conduct has created a force or series of
    forces which are in continuous and active operation up to the
    time of the harm.”).3
    2
    The majority’s view on this point is not clear. On pages 1734 and
    1735, the majority may be suggesting that a biased supervisor who initi-
    ates a disciplinary process for retaliatory reasons is not necessarily liable
    for a constitutional tort. But the passage refers to a supervisor who acts
    “while performing her normal supervisory responsibilities,” thus indicat-
    ing that the hypothetical supervisor, although generally biased, was acting
    without a retaliatory motive in instigating the investigation; otherwise she
    would not have been simply carrying out “her normal supervisory respon-
    sibilities.”
    3
    This causation principle is directly analogous to the “intervening force”
    concept in basic tort law, and differs critically from the principles that
    underlie vicarious liability in tort law. An “intervening force” is one which
    “actively operates in producing harm to another after the [defendant’s]
    negligent act or omission has been committed.” See RESTATEMENT
    (SECOND) OF TORTS § 441. Despite the presence of an “intervening force”
    — in this case, Fuller’s investigation and decision to terminate — the
    defendant remains liable to the plaintiff if the defendant “reasonably could
    have anticipated or foreseen the intervening acts and its consequences.”
    See 3 STUART SPEISER, CHARLES KRAUSE, & ALFRED GANS, THE AMERICAN
    LAW OF TORTS § 11:9 (1986); Restatement (Second) of Torts § 442A.
    1748         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    It is undisputed that Fuller launched the investigation that
    led to Scott’s termination immediately after Brown presented
    her with Scott’s journal. Because Scott’s journal contained
    significant evidence of misconduct, Brown either knew or
    should have known that presenting the journal to Fuller would
    “set[ ] in motion a series of acts” by Fuller that “would cause
    [Fuller] to inflict the constitutional injury,” i.e., to terminate
    Scott. See 
    Gilbrook, 177 F.3d at 854
    . As a result, Brown’s act
    of reporting Scott to Fuller was a “cause” of Scott’s termina-
    tion, even though she did not “direct[ly] . . . participat[e]” in
    the ultimate decision to terminate. See 
    Gilbrook, 177 F.3d at 854
    ; see also Restatement (Second) of Torts §§ 433, 441,
    442A.
    The majority appears to suggest, however, that Brown’s
    decision to report the journal to Fuller cannot support Scott’s
    claim, because Brown discovered the journal and brought it
    to Fuller’s attention while she was “engaged in activities typi-
    cal and appropriate for her position.” Maj. Op at 1735. As a
    result, the majority suggests, any retaliatory animus Brown
    harbored against Scott could not be, as a matter of law, a
    “substantial or motivating factor” in Scott’s discharge. Maj.
    Op. at 1739.
    Although the evidence could support the majority’s inter-
    pretation, it does not foreclose the opposite conclusion. See
    
    Ostad, 327 F.3d at 881
    (“Judgment as a matter of law is
    proper when the evidence permits only one reasonable con-
    clusion and the conclusion is contrary to that reached by the
    jury.”). “The causal link between a protected activity and the
    alleged retaliatory action ‘can be inferred from timing alone’
    when there is a close proximity between the two.” See
    Thomas v. City of Beaverton, 
    379 F.3d 802
    , 812 (9th Cir.
    2004) (quoting Villiarimo v. Aloha Island Air, Inc., 
    281 F.3d 1054
    , 1065 (9th Cir. 2002)). In this case, Brown reported
    Scott’s journal to Fuller approximately one month after Scott
    filed her BOLI complaint. This close temporal proximity was
    probably sufficient evidence on its own to support the jury’s
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY             1749
    conclusion that Brown was motivated by retaliatory animus
    when she reported Scott. See 
    Thomas, 379 F.3d at 812
    (hold-
    ing that sufficient evidence of causation existed where
    adverse employment action occurred seven weeks after pro-
    tected activity); see also Yartzoff v. Thomas, 
    809 F.2d 1371
    ,
    1376 (9th Cir. 1987) (three month time lapse between pro-
    tected conduct and alleged retaliatory act provided sufficient
    evidence of causal connection). In addition, Brown admitted
    at trial that Scott’s BOLI complaint surprised and upset her,
    and that she took Scott’s allegations personally. Also, Brown
    was asked to look for other material from Scott, but, before
    she finished doing so, she reported Scott to Fuller based on
    the journal alone. These combined facts provided sufficient
    evidence — albeit, I concede, not with much room to spare
    — from which a reasonable jury could have concluded that
    Brown’s decision to report Scott and thereby set in motion the
    chain of events that led to Scott’s termination was motivated
    by retaliatory animus, not just routine practice.
    Moreover, the majority is wrong if it is suggesting that the
    fact that Brown’s action in bringing the journal to Fuller’s
    attention occurred while “Brown was engaged in activities
    typical and appropriate for her position,” Maj. Op. at 1735,
    precludes the jury’s verdict that she nonetheless acted with a
    retaliatory motive. Supervisors have the power to retaliate
    precisely because their responsibilities include the authority to
    take steps that will foreseeably harm their subordinates’
    employment circumstances. If we absolve supervisors from
    liability for First Amendment violations whenever they take
    actions while engaged int their normal responsibilities, then
    they will almost never be liable, even if the motive for an
    action challenged was retaliatory.
    Here, the jury necessarily found that at least one substantial
    reason Brown brought the journal to Fuller’s attention was
    that she was angry about the BOLI charge, and, as I have
    shown, that factual conclusion, although quite debatable, is
    supported by adequate evidence. That bringing work infrac-
    1750         LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    tions to Fuller’s attention was part of Brown’s job does not
    negate the finding as a matter of law, any more than a super-
    visor with the responsibility to hire and fire for rule infrac-
    tions would be absolved of liability as a matter of law if he
    fires a subordinate who engages in speech in part because of
    that speech.
    Because a reasonable jury could have found that Brown
    acted with a retaliatory motive when she brought Scott’s jour-
    nal to Fuller’s attention, and because that act was a substantial
    and foreseeable link in the causal chain that led to Scott’s ter-
    mination, I cannot agree with the majority that Scott failed, as
    a matter of law, to show that her protected activity was “a
    substantial or motivating factor” in her termination.
    It is possible that rather than concluding that Brown did not
    act with a retaliatory intent when she reported Scott to Fuller,
    the majority is instead holding that, even if Brown acted with
    a retaliatory motive, Fuller’s independent investigation and
    termination decision absolved Brown of any liability as a mat-
    ter of law. If so, the majority’s holding is in tension with Gil-
    brook.
    In Gilbrook, the plaintiffs-employees sued both their subor-
    dinate supervisors and the superior who made the ultimate
    decision to terminate. 
    Gilbrook, 177 F.3d at 852-53
    . The jury
    concluded that “the plaintiffs’ protected conduct had played
    a ‘substantial or motivating’ role in [the subordinate supervi-
    sor’s] actions against plaintiff, but had not played such a role
    in the actions of [the superior who made the final decision to
    terminate].” 
    Id. at 853.
    Despite the fact that the jury absolved
    the final decision-maker of liability — presumably because he
    made an independent decision to terminate — the court
    upheld the verdict against the subordinate supervisors. 
    Id. at 855-56.
    In other words, the fact that the final decision maker
    acted independently and without a retaliatory motive did not
    automatically negate the subordinate supervisors’ liability for
    the employees’ termination. In fact, the court expressly
    LAKESIDE-SCOTT v. MULTNOMAH COUNTY                    1751
    rejected the argument, made by the subordinate supervisors,
    that the superior’s “legitimate, nonretaliatory motive ‘cuts off’
    the liability of his subordinates” as a matter of law. 
    Gilbrook, 177 F.3d at 853
    .
    B.    Brown’s Affirmative Defense
    Because I would hold that Scott presented sufficient evi-
    dence from which a jury could have concluded that her pro-
    tected conduct was a “substantial or motivating factor” in her
    termination, I would reach the question whether Brown estab-
    lished the affirmative defense outlined in Mt. Healthy. That
    defense required Brown to demonstrate, by a preponderance
    of the evidence, that “the disciplinary action would have been
    taken against [Scott] even in the absence of the protected con-
    duct.” 
    Gilbrook, 177 F.3d at 855
    (citing Mt. 
    Healthy, 429 U.S. at 287
    ); see also 
    Ostad, 327 F.3d at 883
    (holding a subordi-
    nate supervisor liable where the supervisor instigated an
    investigation, participated actively in that investigation, and
    failed to prove that the employee “would have been termi-
    nated . . . even in the absence of his protected speech”).4
    Brown met that burden here. She introduced evidence that
    the journal initially was uncovered through an unrelated
    investigation, instigated by Fuller, of another employee; that
    Brown herself did not discover the journal; that employees in
    the human resources department were independently aware of
    the journal; and that the journal, by virtue of its length and
    inflammatory content, was likely to attract attention from HR
    employees and to warrant a report to senior management.
    Given that evidence, I would hold that a reasonable jury could
    only have concluded that Fuller would have learned of the
    journal, instigated the investigation of Scott and reached the
    same conclusion even without prompting from Brown, and
    therefore Scott’s termination would have occurred “even in
    4
    The majority performs this analysis, see Maj. Op. at 1739, but does not
    acknowledge it as part of Brown’s affirmative defense.
    1752        LAKESIDE-SCOTT v. MULTNOMAH COUNTY
    the absence of the protected conduct.” See 
    Gilbrook, 177 F.3d at 855
    .
    In sum, I would reverse the jury’s verdict under part two,
    not part one, of the Mt. Healthy burden-shifting framework on
    the grounds that, based on the facts presented, Fuller’s inves-
    tigation — and hence Scott’s termination — was inevitable.
    Such a holding acknowledges the deference we must afford to
    a reasonable decision by a jury, and avoids placing too great
    an evidentiary burden on a plaintiff seeking to vindicate her
    First Amendment rights.
    For all these reasons, I concur in the judgment, but not in
    the majority opinion.
    

Document Info

Docket Number: 05-35896

Filed Date: 2/12/2009

Precedential Status: Precedential

Modified Date: 10/14/2015

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